Introduction: Understanding powers of attorney

Guardians and administrators are appointed by the Victorian Civil and Administrative Tribunal (VCAT) when people are unable, because of their disability, to make decisions for themselves.

A guardian makes “lifestyle” decisions, such as those relating to health, accommodation or access to services. An administrator makes financial and legal decisions. The person for whom a guardian or administrator is appointed is known as the “represented person”.

The represented person must have a disability for a guardian or administrator to be appointed. A disability is an intellectual impairment, brain injury, mental disorder, physical disability or dementia. The represented person must also lack the ability to make reasonable judgments because of their disability.

The authority to appoint guardians and administrators, and to reassess and remove them, is vested in the Guardianship List of VCAT. The procedure of this list is governed by the provisions of the Guardianship and Administration Act 1986 (Vic) (“GA Act 1986”) and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”). For VCAT’s contact details, seeContacts”.

On 1 March 2020, the Guardianship and Administration Act 2019 (Vic) (“GA Act 2019”) will come into effect. The GA Act 2019 draws inspiration from the United Nations Convention on the Rights of Persons with Disabilities (2006) (CRPD) (see www.un.org), so it emphasises the empowerment of people with disabilities to make decisions for themselves and to make decisions with support. Decisions are no longer to be made in a person’s “best interests”. When a decision is made for a represented person, the decision-maker must consider – and as far as practicable be directed by – the person’s will and preferences.

The GA Act 2019 allows for the appointment of supportive guardians and administrators, who are to support the represented person to make decisions, but not make decisions for them.